Purbrick v Hackney London Borough Council
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE NEUBERGER |
| Judgment Date | 26 June 2003 |
| Neutral Citation | [2003] EWHC 1871 (Ch) |
| Court | Chancery Division |
| Date | 26 June 2003 |
[2003] EWHC 1871 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Neuberger
MR DE ROHAN (instructed by Messrs W H Matthews & Co) appeared on behalf of the CLAIMANT
MR SPURR (instructed by Hackney Legal Services) appeared on behalf of the DEFENDANT
This is an appeal from the decision of Mr CW Martin, the Deputy Solicitor to Her Majesty's Land Registry. Following a hearing on 28th January 2003, he decided on 24th February 2003, in a written decision, that Mr Victor Purbrick had failed to make out a case that he had obtained title, by adverse possession, to a building which was part of a registered title, of which the registered proprietor was the London Borough Council of Hackney.
The decision of the Deputy Solicitor is full and clearly reasoned. The building, the subject of these proceedings, comprises a small part of a property, registered in the name of the Council, which is 183, 185, 187 Stoke Newington High Street, 1 to 11 Aldam Place, a yard and garage, and the site of Aldam Place itself. Sometime in the 1970s, Aldam Place was the subject of a major fire and much of the property comprised in the title had been demolished, and the site of Aldam Place became a car park. The building, the subject of these proceedings, ("the building") is attached to the rear of 179 Stoke Newington High Street. The Deputy Solicitor described the building in these terms:
"It is about 4 metres wide, 6 metres long and about 4 metres high. For some reason, possibly because of its particular position in a small corner of the site, it survived demolition but stood derelict for many years"
The evidence of Mr Purbrick, which was accepted by the Deputy Solicitor, was to this effect. In the summer of 1988, he was living in Southend and was working as a builder in east London. He stored plant and equipment in his van, which he used to park near the building. He noticed that it was what the Deputy Solicitor described as "a burnt out shell". It had a doorway but no door and rubbish had been dumped inside. The roof had either collapsed or disappeared.
In September 1988, Mr Purbrick cleared the rubbish and began to store ladders and other equipment in the building; he chained them securely together. He covered the equipment and building materials with a tarpaulin, because of the lack of a roof. In about October 1988, he put a sheet of corrugated iron across the doorway and chained it to the old doorframe, securing it with a chain and two padlocks. Mr Purbrick said, and the Deputy Solicitor appears to have accepted, that this arrangement:
"Was intended to serve as a door and prevent anyone else from getting into the property"
This remained the position for four years. The Deputy Solicitor said that, although this arrangement was "very basic", Mr Purbrick had been:
"Reluctant to carry out any work on the property in case anyone else had tried to stop him using it. He also tried to keep a low profile in case the owner saw him"
He also told the Deputy Solicitor that if the council had tried "to reclaim the property" he would have tried to rent it. By 1992, nothing had happened to disturb Mr Purbrick's use of the building, and he then decided to instal a proper door and roof, and to restore the first floor. This he did in the autumn of 1992. Thereafter, he remained in occupation of the building.
In effect, it is, and was, common ground between the parties before the Deputy Solicitor, and indeed, before me, that the crucial period to be considered is between 1988 and 1992. If Mr Purbrick establishes that he was in adverse possession of the building between 1988 and 1992, then he will manage to attain 12 years' adverse possession and, accordingly, his appeal should succeed. If, as the Deputy Solicitor concluded, he cannot rely on those approximately 4 years' occupation as constituting adverse possession, then, as the Deputy Solicitor found, his application must fail.
The case law relating to adverse possession has been bedevilled by difficulties as to the meaning of the word "adverse", the elusive nature of possession, and the tendency of courts on occasion to put glosses on the law, perhaps because of an understandable distaste for the ability of squatters to obtain title by adverse possession.
Be that as it may, the law has been authoritatively clarified by the recent decision of the House of Lords in J A Pye (Oxford) Ltd v Graham, [2002] 3 WLR 221. The statutory provisions governing adverse possession in the Limitation Act 1980, are set out in the speech of Lord Browne-Wilkinson, at 229 B-G. I do not propose to rehearse them here. For the purpose of this appeal, it is necessary, however, to refer to one or two passages in his speech.
So far as the concept of possession is concerned, Lord Browne-Wilkinson said this, at 233H:
"There are two elements necessary for legal possession:
1. A sufficient degree of physical custody and control ("factual possession")
An intention to exercise such custody and control on one's own behalf and for one's own benefit ("intention to possess")
"What is crucial is to understand that, without the requisite intention, in law there can be no possession"
At little later he discussed the meaning of factual possession. At 234 E-F, he cited, with approval, an observation of Slade J. in Powell v McFarlane, [1977] 38 P & CR 452 at 470 to 471:
"Factual possession signifies an appropriate degree of physical control. It must be single and exclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land, and a person intruding on that land without his consent, cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed. …. Everything must depend on the particular circumstances but, broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it, and that no one else has done so"
Lord Browne-Wilkinson had rather more to say on the issue of intention to possess. At 234H to 235E, he said this:
"42. There are cases in which judges have apparently treated it as being necessary that the squatter should have an intention to own the land in order to be in possession. In Littledale v Liverpool College, [1900] 1 Ch 19 24, Lindley MR referred to the plaintiff relying on "acts of ownership". …In the Moran case, …the Court of Appeal … [1990] Ch 623, 643 adopted this proposition which in my judgment is manifestly correct.
I should interpose to say that that proposition is that what is required is not an intention to own, or even an intention to acquire an issue, but an intention to possess.
Lord Browne-Wilkinson went on:
"Once it is accepted that in the Limitation Acts, the word 'possession' has its ordinary meaning … it is clear that, at any given moment, the only relevant question is whether the person in factual possession also has an intention to possess … Slade J reformulated the requirement (to my mind correctly) as requiring an 'intention, in one's own name and on one's own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow'"
I must finally refer to passages in Lord Browne-Wilkinson's speech, at 236G to 237A:
"In Ocean Estates Ltd v Pinder, [1969] 2 AC 1924, Lord Diplock, giving the advice of the Privy Council, said that an admission by the squatter to that effect [i.e. a preparedness to pay rent if asked by the paper title owner] 'which any candid squatter hoping in due course to acquire a possessory title would be almost bound to make', did not indicate an absence of an intention to possess. … The decision in Pinder…is consistent with principle. Once it is accepted that the necessary intent is an intent to possess, not to own, and an intention to exclude the paper owner only so far as is reasonably possible, there is no inconsistency between a squatter being willing to pay the paper owner if asked and his being in the meantime in possession. An admission of title by the squatter is not inconsistent with the squatter being in possession in the meantime"
As I have already indicated, the Deputy Solicitor rejected Mr Purbrick's case that he had been in possession, as that expression had been explained by Lord Browne-Wilkinson for the years 1988 to 1992. I think it is necessary for me to quote from passages in his decision. He said this:
"I think it is helpful to consider what a visitor to the site would have been likely to see and to assume once the applicant [that is, Mr Purbrick] had started using the disputed building in late 1988. If he had noticed the applicant going about his business, the visitor would, I imagine, assume that he was using the building to store his equipment, and possibly because he was working on a job nearby. The lack of any roof and only a makeshift 'door' would suggest that this was just temporary use and that the person concerned, either had the permission of the true owner, or was simply taking a chance and risking that no one would object to him using the property for a short while. The padlocked 'door' would quite understandably be necessary to prevent his...
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